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Writ Petition No.3359 of 1981, decided on 28th March, 1984.

---Preamble and S.3--Sales Tax Act (III of 1951), Preamble & S.3- Finance Act (XXIV of 1981), S.3--Central Excises and Salt Act and Sales Tax Act, 1944, comparison and distinction--Excise duty, held, a tax on goods manufactured or produced and sales tax, a tax inter alia on manufacture and production of goods--Distinction between two levies appearing somewhat blurred for both are changeable ad valorem on value of goods manufactured or produced--Legislature by giving two levies different nomenclatures, held, clearly indicated that two levies were entirely of different kinds--Sales tax although as tax on manufacture and production of goods yet it has to relate to some stage of their disposal, may be, by way of sale, self-consumption or otherwise.

Colony Textile Mills Limited v. Assistant Collector 1980 C L C 1660 ref.

Noorani Cotton Corporation v. Sales Tax Officer P L D 1965 SC 161 and Muhammad Younis v. Central Board of Revenue P L D 1964 S C 113 ref.

---S.3 (3)(i)--Sales tax--Rate--Rate at which sales tax to be levied, is day on which goods leave factory or warehouse--Rate of sales tax when reduced while goods were still lying in factory or warehouse they were to be charged at reduced rate--Demand of duty at old rate, held, illegal.

---S. 3(4), proviso--Sales tax--Determination of point of time when duty, becomes leviable- -Proviso to S. 3(4) cannot determine point of time when duty becomes leviable- -Proviso an enabling provision to facilitate Board of Revenue in recovering sales tax--Section 3(4) could not be pressed into service to recover sales tax even before value of goods stood determined or to obliterate distinction between excise duty and sales tax.

---S.3--Sales Tax Act (III of 1951), S.3--Provisional Constitution Order (1 of 1981), Art.9--Excise duty and sales tax, levy of--Excise duty, held, becomes leviable as soon as excisable goods come into existence- Sales tax becomes leviable while sale price is determined under Sales Tax Act, 1951.

Javed S.Khawaja assisted by Salman Aslam for Petitioner.

Zia Mahmood Mirza for Respondents Nos. 1 to 4.

B.Abdul Kadir for Respondent No.5.

Date of hearing: 26th October and 2nd November, 1983.

This order will dispose of two writ petitions, registered as W.P No.3359 of 1981 and W.P.No.1265 of 1982. These have been heard together as common questions of law arise in them.

2. The petitioner in W.P.No.3359 of 1981 manufactures rubber products. Its products are subject to both excise duty as well as sales tax. The petitioner in W.P.No.1265 of 1982 manufactures biscuits, lozenges, sweets, etc. Its products are subject to sales tax only. Prior to June 1981 the petitioners in both writ petitions paid sales tax at the rate of 20 in respect of their products. On 25-6-1981 the Finance Ordinance, 1981 came into force. It reduced the rate of tax to 12 %. At the time when the Ordinance came into force fairly substantial quantities of the products of the petitioners were lying in their respective factories. The sales tax authorities demanded sales tax at the old rate, that is, 20% in respect of these products on the ground that those had been manufactured and produced before the promulgation of the Ordinance. The petitioners have challenged the legality of the demand and the only question for consideration in these two writ petitions is whether the benefit of the reduced rate is extendable to those products also which were lying in the factories and warehouses of the petitioners when the Ordinance of 1981 came into force or was it available only in respect of such products as were manufactured or produced subsequently.

3. To appreciate the contentions raised in support of these petitions it will be of advantage to briefly refer to the relevant provisions of the Sales Tax Act, section 3 is the charging section. Subsection (1) thereof reads as follows:-

"There shall be levied and collected a tax on the value of-------

(a) all goods produced or manufactured in Pakistan payable by the manufacturer or producer--------------------".

This subsection makes all goods produced or manufactured in Pakistan subject to the levy of the sales tax and that the quantum of tax leviable is proportionate to their value. There are of course provisions dealing with exemptions in the Act but in these petitions we are not concerned with them. Subsection (2) of section 3 of the Act prescribes the rate of the tax. Subsection (3) defines the expression 'value of goods': in respect of goods produced and manufactured in Pakistan the value means their sale price. Subsection (4) fixes the point of time when the tax becomes payable. Under this subsection, ordinarily, in respect of goods produced or manufactured in Pakistan the tax becomes payable when they are delivered to the purchaser or when the property in them passes to the purchaser or when they are actually used by the producer or manufacturer. There were two provisos to the subsection. Both these provisos were substituted by the Finance Ordinance of 1981. The new proviso reads as follows:-

"Provided that, in case of goods mentioned in clause (a) subsection (1), the tax shall, where the Board so directs, be payable at the same time and in the same manner as the duty of excise under the Central Excises and Salt Act, 1944 (1 of 1944) and the provisions of the said Act and the rules made thereunder shall, so far as may be and with the necessary modification apply for the purposes of this Act as they apply for the purposes of the said Act."

It is not in dispute that in respect of the goods manufactured by the petitioners the Board has issued such a direction.

4. The expression 'sale price' has been given a. technical meaning in section 2(16) of the Act. It reads:-

"Sale price means:--

(i) as respects goods chargeable with the duty of excise under the Central Excises and Salt Act, 1944, the value determined under section 4 of the said Act plus the said duty, and, where the provisions of the said section 4 do not apply, the value which would have been determined if the said section had applied plus the said duty; and ..".

Section 4 of the Central Excises and Salt Act reads as follows:----

"(i) where under this Act any article is chargeable with duty at a rate dependent on the value of the article, such value shall be deemed to be the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold to the general body of retail traders or if there is no general body of retail traders, the general body of consumers on the day on which the article which is being assessed to duty is removed from the factory or the warehouse, as the case may be, without any abatement or deduction whatever except the amounts of duty and sales tax then payable. -----------------------

5. The contention of the petitioners is that since the sales tax is charged on the value of the goods it would become leviable only when the said value is determined under the provisions of the Act and not when they are manufactured or produced. As under section 4(i) of the Central Excises and Salt Act the value of the goods is to be determined with reference to the day of their removal from the factory or the warehouse it is the rate which is in force on that day which would be relevant for the purpose of ascertaining the tax liability of the manu facturer or producer.

6. On behalf of the respondents reliance has been placed on the proviso to section 3(4) of the Sales Tax Act which has already been quoted above. It is contended that under this proviso sales tax can be collected at the same time and in the same manner as the duty of excise; as the rate of excise duty has to be determined with reference to the date of the production of goods and not with reference to the date they leave the factory or the warehouse it will also be so in the case of the sales tax for no tax can be collected unless its rate already stands determined. In support of the contention that the excise duty is to be determined with reference to the date of the production of the goods and not with reference to the date of their removal from the factory or warehouse reference has been made to a judgment of this Court reported as Colony Textile Mills Limited v. Assistant Collector 1980 C L C 1660.

7. Before I proceed to examine the above contention I may mention that frequent amendments in the Sales Tax Act have windened the field of the levy created thereunder. This feature of the Act was noticed by the Supreme Court in Noorani Cotton Corporation v. Sales Tax Officer P L D 1965 S C 161 where Kaikaus, J. observed:-----

"The sales tax by its name should be a tax on sales, but that is not quite in accord with the provisions of this section (that is, section 3). It is a tax on goods produced or manufactured or imported or exported."

The observations of his Lordship if I may say so with respect are in accord with the long title of the Act which runs as follows:----

"An Act to consolidate and amend the law relating to the levy of tax on the sale, importation, exportation, production, manu facture, or consumption of goods."

If we compare the preambles of the Central Excises and Salt Act and the Sales Tax Act we find that the excise duty is a tax on goods manufactured or produced and the Sales Tax Act is a tax inter alia on the manufacture and production of goods. At first sight the distinction between the two levies appears to be somewhat blurred for both are changeable ad valorem on the value of the goods manufactured or produced in Pakistan. But then we must not overlook the fact that the Legislature, by giving the two levies different nomenclatures, has clearly indicated that the two levies are entirely of different kinds. In this context I may refer to the case of Muhammad Younis v. Central Board of Revenue P L D 1964 S C 113 in which the Supreme Court observed:----

"Nevertheless, since the two categories of taxes are described by different nomenclatures, it may still be possible to urge that, in the absence of any specific provision in the statute indicating the stage at which a duty of excise is to be collected, it will be natural to presume that a duty of excise having regard to its primary nature would be collected at some stage which has some relation with production or manufacture".

By parity of reasoning, the sales tax even though it may also be a tax on the manufacture and production of goods has to relate, as its name suggests, to some stage of their disposal, may be, by way of sale, self-consumption or otherwise. This view finds support fro , the fact that in the Sales Tax Act the value of goods has been given a restricted meaning and by section 3(3) (i) thereof it has been equated with the sale price. Further, the definition of 'the sale price' as given in section 2(16) of the Sales Tax Act, read with section 4 of the Central Excises and Salt Act, has two elements, firstly, the wholesale cash price and secondly, point of time with reference to which the said price is to be determined. To me there appears to be no reason, why the levy of sales tax be anterior to the day relevant for the purpose of determining the value of goods under the Act. I should, therefore, think that the rate at which the sales tax is to be levied is the gay on which the goods leave the factory or warehouse. Since in these petitions the rate of sales tax was reduced while the goods were still lying in; the factory or the warehouse of the petitioners, they were to be charged with the tax at the reduced rate.

8. I do not think that the proviso to section 3(4) is of any assistance is determining the point of time when the duty becomes leviable. This proviso is an enabling provision to facilitate the Board of Revenue in, recovering the sales tax. It can hardly be pressed into service top recover sales tax even before the value, of the goods stands determined in accordance with the provision of the Act or to obliterate the distinction that exists between the excise duty and the sales tax.

9. The reliance upon the Colony Textile Mills Limited v. Assistant Collector is inapt for it related to the recovery of the excise duty. It is to be noticed that the excise duty becomes leviable as soon as excisable goods come into existence, It thus differs from the sales tax which becomes leviable while the dale price is determined under the, Act.

10. For the reasons stated above I would accept these writ petitions and declare that the actions of the respondents in demanding duty at the old rate is illegal. The petitioners shall also have their cots in these writ petitions.

M . Y . H . Petition accepted.

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